The Commission's aim is to build on their progressive Open Science agenda to provide an optional Open Access publishing platform for the articles of all researchers with Horizon 2020 grants. The platform will also provide incentives for researchers to adopt Open Science practices, such as publishing preprints, sharing data, and open peer review. The potential for this initiative to lead a systemic transformation in research practice and scholarly communication in Europe and more widely should not be underestimated.

That last sentence makes a bold claim. Hindawi's blog post provides some good analysis of why the transition to open access and open science is proving so hard. Hindawi's proposed solution is based on open source code, and openness in general:

Our proposal to the Commission involves the development of an end-to-end publishing platform that is fully Open Source, with an editorial model that incentivises Open Science practices including preprints, data sharing, and objective open peer review. Data about the impact of published outputs would also be fully open and available for independent scrutiny, and the policies and governance of the platform would be managed by the research community. In particular, researchers who are currently disenfranchised by the current academic reward system, including early career researchers and researchers whose primary research outputs include data and software code, would have a key role in developing the policies of the platform.

Recognizing the flaws in the current system of assessment and rewards is key here. Open access has been around for two decades, but the reliance on near-meaningless impact factors to judge the alleged influence of titles, and thus of the work published there, has barely changed at all. As the Hindawi blog post notes:

As long as journal rank and journal impact factor remain the currency used to judge academic quality, no amount of technological change or economic support for open outputs and open infrastructure will make research and researchers more open

Unfortunately, even a major project like the Horizon 2020 open research publishing platform -- whichever company wins the contract -- will not be able to change that culture on its own, however welcome it might be in itself. Core changes must come from within the academic world. Sadly, there are still precious few signs that those in positions of power are willing to embrace not just open access and even open science, but also a radical openness that extends to every aspect of the academic world, including evaluation and recognition.

from the brave-new-world dept

Here's the thing about public profiles on social media services: they're public. If you don't want to be immediately arrested for committing criminal acts, maybe steer clear of social media. A multitude of examples can be found here at Techdirt, many of them covered caustically by Tim Geigner.

But it's not just bragging about bad behavior getting people caught. It's not being more selective about who you let into your online inner circle. It's not a new thing but it's only going to become more prevalent. "Friending" people you don't know is pretty much letting cops take a look around your place without a warrant.

A recent Delaware Supreme Court ruling said there's no Fourth Amendment violation contained in government surveillance of a public Facebook account, even if a cop hid behind a pseudonym to get invited into the suspect's social circle. While it does seem like months of lurking to produce only a weapons possession charge is sort of low on the ROI, scale, lurking is a passive effort that only requires the periodic checking of notifications from surveilled accounts.

There's no expectation of privacy to stuff published to social media accounts others can view. Setting it to "Friends Only" may prevent the general public from accessing the contents of your page, but when the passive surveillance is already coming from inside the house (so to speak), there's really little you can argue when seeking to have this evidence suppressed. It's sort of like inviting in vampires and then complaining about the holes in your neck.

Another defendant is challenging the evidence cops acquired by browsing his Facebook page as "friends." The Sixth Circuit Court of Appeals has some sympathy for the arguments raised. In this case, a citizen's tip turned into low-key surveillance, which ultimately turned into federal gun charges. From the decision [PDF]:

After serving time in prison for a previous felony, [Malik] Farrad was released from federal custody in January 2013. Farrad came to the attention of local law enforcement sometime after June 10 of that same year, when “[v]arious confidential informants and concerned citizens” evidently “reported observing Farrad to be in possession of one or more firearms while in Johnson City, Tennessee.” Some time later, a Johnson City police officer named Thomas Garrison, using an undercover account, sent Farrad “a friend request on Facebook.” After Farrad “accept[ed] the friend request,” Garrison was able to see more of Farrad’s photos. “One [photo] in particular” “caught [his] interest”: a photo that showed what appeared to be three handguns “sitting on a closed toilet lid in a bathroom.”

I don't own a handgun so I'm not really up on proper display technique, but this practical demonstration of why the bathroom is the most dangerous room in the house soon found its way to the FBI, which immediately sought a warrant for the contents of Farrad's Facebook account. This turned up some other photos of guns, along with limbs and distinguishing tattoos that seemed to constitute a Facebook approximation of a convicted felon in possession of handguns.

Oddly, no warrant was obtained to search Farrad's residence. This meant the entirety of the prosecution rested on photos of guns pulled from Facebook. The Sixth Circuit opens its opinion by remarking of the unusualness of the case, which certainly isn't going to seem all that unusual in the coming years.

No physical evidence was presented, no witness claimed to have seen Farrad with a gun, and Farrad himself never made any statements suggesting that he owned a gun; instead, the Government relied primarily on photographs obtained from what was evidently Farrad’s Facebook account. To help prove its case, however, the Government called two police officers: Officer Garrison, who testified that criminals are particularly likely to upload photos of criminal deeds soon after committing those deeds, and Officer Hinkle, who testified at length about the similarities between the photos and a real gun, as well as the dissimilarities between the photos and the closest fake gun of which he was aware.

Now, there were ways Farrad could have challenged the evidence on appeal. As his counsel noted during his trial, the photos -- which the trial court found were "self-verifying business records" stored by Facebook -- may not have been evidence of anything. First off, the photos may have been posted when Facebook said they were (October of 2013) but there's no info available anywhere showing when the photos were actually taken. Both Facebook's rep and the investigating officer admitted the only thing Facebook knows is when photos are uploaded. Existing metadata is stripped during the upload process, removing any evidence of where and when the photos were taken.

As the court notes, the prosecution's decision to use only evidence gathered from Facebook raised a host of questions about the sufficiency of the evidence.

As the foregoing helps make clear, there are a few potential theories on which Farrad’s trial and appellate counsel could have challenged his indictment and conviction, respectively. First, could any rational juror have concluded beyond a reasonable doubt that the photos were taken on or about October 11? (Call this the “date” theory.) Second, could any rational juror have concluded beyond a reasonable doubt that the item in the photos was not a fake gun? (Call this the “replica” theory.) Third, could any rational juror have concluded beyond a reasonable doubt that the photos were not altered to suggest the appearance of a real gun? (Call this the “Photoshop” theory.) Fourth, could any rational juror have concluded that Farrad was in fact the person in the photos? (Call this the “lookalike” theory.)

Unfortunately for Farrad, his counsel never developed most of these arguments and actively abandoned the first one on appeal. Instead, his rep focused on the theory least likely to succeed: that the guns in the photo weren't real guns. The court isn't impressed by this theory or Farrad's decision to pursue this one on appeal.

The legal problem is this: Farrad is not the first person in our circuit to argue that what appears in images to be a gun is really a sophisticated replica, though he may be the first to argue it in this particular context. If a defendant is convicted of armed robbery, however, and claims the gun that witnesses saw was merely a convincing fake, reasonable jurors may infer—at least when corroborated by images or the testimony of a witness with law-enforcement experience— that the gun was real.

The court acknowledges the comparison isn't entirely fair. The guns weren't used to serve as a threat in the commission of a violent crime. They were merely pictures on a Facebook profile. But they were particularly detailed photos which aided the prosecution in its quest to prove they were the real thing.

In any event, however, the replica theory falters on the facts, because this is not a case in which a jury was asked to draw a conclusion from a few grainy or ill-lit photos, or asked to guess at an object out of focus or in the distance. Rather, the jury in Farrad’s case saw seven different photos, all from different angles, some remarkably close-up and of seemingly high resolution. And it heard exceedingly meticulous testimony from Hinkle— pointing to, among other things, markings and serrations on the slide, a lever and ridges on the trigger guard, and the shape and position of the firing pin—that both (a) convincingly likened the item in the close-up photographs to a real Springfield XD .45, and (b) discredited the closest non-gun comparator that Hinkle could find.

That the guns were real doesn't necessarily impute ownership. This was cobbled together from the array of info pulled from Facebook and this point mostly went unaddressed by the lower court and the appeals court. There may have been more to say on the subject but this question was addressed obliquely by Farrad and his lawyer, which leads to the court affirming the lower court's decision.

This is unfortunate for Farrad since the Appeals Court says it does have a problem with the testimony offered by law enforcement on this particular point. The government's expert on social media surveillance testified that he believed criminals were day-and-date when celebrating illegal acts on social media. He declared more often than not criminals upload photos, etc. to social media sites soon after acts have been committed or ill-gotten goods obtained. When pressed by the defense, he could not state specifically -- or even generally -- how often immediate posts happen compared to delayed posts of photos taken week, months, or years ago.

The Appeals Court says this supposed testimony -- and the trial court's overruling of the defense's objections -- was not a harmless error. Unfortunately, Farrad's counsel abandoned the "date" theory during the trial, in essence making the error harmless by not challenging it prior to jury deliberations. This theory was (again) disavowed by Farrad's lawyer in briefs to the Sixth Circuit, leaving it little choice but to uphold the conviction and sentence. It doesn't like the outcome, but it can only work with what it's given.

The bottom line in this case—that Farrad has been sentenced to serve 188 months in prison because the Government found Facebook photos of him with what appears to be a gun— may well raise a lay reader’s hackles. There are likewise aspects of Farrad’s trial and conviction—the date issue, Officer Garrison’s testimony—that are at least debatably troubling from a legal perspective. Nevertheless, we are not empowered to grant relief based on arguments not made or where errors were harmless.

There are many troubling aspects to this case. With very little effort expended, law enforcement agencies are building cases involving nothing but social media posts. A possession charge used to mean someone being physically caught with the actual, physical contraband in their possession. Now, it's apparently enough to just submit a bunch of Facebook posts as evidence and hope the defense fails to pick the right argument to pursue. What used to be supporting evidence is now the main event, and it all starts with risky clicks by social media users.

from the STOP-TRYING-TO-HELP dept

It's a law named after a crime victim, so you already know it's going to be questionable. Federal lawmakers are floating a bill aimed at undermining some of the Fourth Amendment just handed back to us by the Supreme Court. At stake is cell site location info, although in a much more limited amount and in much more limited form. The EFF's Dave Ruiz has more details.

The Kelsey Smith Act (H.R. 5983) tries to correct a tragedy that occurred a decade ago by expanding government surveillance authorities. It is a mis-correction.

The bill would force cell phone companies to disclose the location of a person’s device at the request of police who believe that person is in distress. On its face, that’s not unreasonable. But if the police make a mistake—or abuse their power—the bill offers almost no legal recourse for someone whose location privacy was wrongfully invaded.

This law is named after Kelsey Smith, who was murdered more than a decade ago. Police approached Verizon asking for her cellphone's current location, only to be told they needed to get a subpoena. By the time police had obtained that, Smith was already dead -- killed the same day she was kidnapped. As Ruiz points out, Kansas lawmakers immediately carved out an emergency exception for cell location ping orders, stripping away subpoena requirements. This bill would extend that to all 50 states.

The problem is the bill's wording, which would eliminate privacy protections granted to Americans under the nebulous heading of "emergency." The bill's language contains an expansive definition for the new subpoena/warrant exception, which would definitely cover no one idea of an emergency.

The Kelsey Smith Act allows law enforcement agents to access the location of any cell phone that has dialed 9-1-1 for emergency assistance in the last 48 hours. Almost by definition, that’s not an emergency. Emergencies are of-the-moment crises, requiring immediate responses. If you call 9-1-1 today to request emergency assistance, law enforcement shouldn’t be able to get your location information 48 hours later without showing that the call relates to a current emergency.

At this point, service providers can make judgment calls on demands for location info. A provider can demand a subpoena or warrant first, even if law enforcement claims it's an emergency. These assessments are made on behalf of their customers, protecting their privacy against needless intrusion. If the police need the info, they have the burden of showing cause. This bill would do more than simply reverse the burden of proof. It would do away with it completely, forcing service providers to turn over info any time an officer states it's an emergency.

The problem with granting law enforcement a longer leash in these cases is they've been shown to abuse the permissions they already have. The EFF's post contains statements from the ACLU's Nate Wessler about abuse of emergency exceptions in police departments all over the nation, used in criminal cases involving no real emergencies.

But that's not all. The Justice Department's watchdog has uncovered systemic abuse of the same exceptions by federal officers.

In a 2010 report, the Department of Justice’s Inspector General found systemic misuse of emergency requests for call record information by the FBI. The report found that emergency requests were used in entirely non-life-threatening situations, including three “media leak investigations,” one of which resulted in the collection of telephone records from Washington Post and New York Times reporters.

While nominally limited to phones that have dialed 9-1-1, the exception encourages officers to think outside the Fourth Amendment's box and use the paperless route whenever possible. This isn't speculation. This is what's already happening. At this point, it's still mainly up to service providers to fend off BS demands for location data. If this bill passes, the last barrier will be torn down, turning service providers into unofficial extensions of law enforcement agencies.

from the this-is-unfortunate dept

Back in February we wrote about an absolutely horrible ruling out of a New York court by Judge Katherine Forrest that argued embedding an infringing tweet could be an act of infringement on its own. As we pointed out, if this ruling holds, it would undermine some of the basis of how the internet itself works. The issue here gets a bit into the weeds of both how the internet and how copyright law works. Embedding something on the internet, at a technical level, is really no different than how linking on the internet works. And it's long been established that if you link to infringing content, that alone should not be considered a separate act of infringement. But is embedding? At a very basic level, this is the difference between the two:

Everyone agrees that the first one is not infringing by itself (the original site hosting it, or the person who uploaded it, may be infringing, but not the person linking to it). Most courts have used the "server test" on this question, saying that if you merely embedded the image, a la what's above, it's not infringing for the person who used the embed code. This makes sense for a fairly important reason: if you use an embed code on your site, you never actually have the image on your site. Even if it appears on the site, that is merely because the end user's browser pulls that image in and displays it -- which is exactly how the web was designed to work, with the ability to pull in content from many different places and show it all together.

But Judge Forrest decided to throw everyone for a loop and toss that whole idea out the window:

The Court declines defendants’ invitation to apply Perfect 10’s Server Test for two reasons. First, this Court is skeptical that Perfect 10 correctly interprets the display right of the Copyright Act. As stated above, this Court finds no indication in the text or legislative history of the Act that possessing a copy of an infringing image is a prerequisite to displaying it...

Perhaps more troubling is that Forrest cited the silly Aereo "looks like a duck" test to argue that even though it's technically no different than linking, and even though the defendants in this case don't actually host or distribute the image, because it looks like they are hosting it, they can be liable for infringing the display right.

In this particular case, photographer Justin Goldman sued a bunch of media sites for embedding a photo that others had uploaded to Twitter (Goldman had originally posted it to Snapchat, and someone else took it to Reddit, where someone else brought it to Twitter). A bunch of media sites then embedded the tweet, and Goldman sued them all more or less, even though such embeds that show the associated media are a key feature of Twitter.

Judge Forrest allowed the defendants to do an interlocutory appeal, which basically puts the rest of the case on hold to allow a certain part of the case to be appealed to make sure the district court got it right. Interlocutory appeals aren't always allowed and some courts don't really like them very much. In this case, Judge Forrest allowed it to go up to the 2nd Circuit appeals court, but that court has said it won't review the ruling... for now.

Depending on where you stand this may or may not be a good thing. The case now moves back to the lower court (though, potentially with a different judge as Forrest just announced she's leaving the bench at some point "later this year."). It may go to trial, or the remaining defendants may decide to just settle the case and not have to deal with it. If the case does move forward, there are other potential reasons why Goldman may have difficulty winning, including the lack of actual knowledge of infringement by the publishers embedding the tweets.

In either of those situations, Forrest's odd decision is then rendered less impactful. Since it's in the district court, it has no direct precedential value on other cases (though can be cited). And that's at least preferable to the 2nd Circuit blessing Forrest's dismissal of the server test... though not as good as if the 2nd Circuit decides to bless the server test. It's also possible that the issue could come up on appeal later (i.e., not as an interlocutory appeal, but after the case reaches a conclusion in the lower court). Either way, this case is still a bit of a mess, and is yet another example of how bad the law is at dealing with technology.

from the smallish-bulwark-against-tyranny dept

A Canadian appeals court has decided in favor of greater privacy protections for Canadians. The case involves the discovery of child porn by a computer technician who was repairing the appellant's computer. This info was handed over to the police who obtained a "general warrant" to image the hard drive to scour it for incriminating evidence.

Yes, "general warrants" are still a thing in the Crown provinces. The same thing we fought against with the institution of the Fourth Amendment exists in Canada. These days, it has more in common with All Writs orders than the general warrants of the pre-Revolution days, but there's still a hint of tyrannical intent to them. (Again, much like our All Writs orders, which date back to 1789.) "General warrants" are something the government uses when the law doesn't specifically grant permission for what it would like to do:

A provincial court judge, a judge of a superior court of criminal jurisdiction or a judge as defined in section 552 may issue a warrant in writing authorizing a peace officer to, subject to this section, use any device or investigative technique or procedure or do any thing described in the warrant that would, if not authorized, constitute an unreasonable search or seizure in respect of a person or a person’s property if

(a) the judge is satisfied by information on oath in writing that there are reasonable grounds to believe that an offence against this or any other Act of Parliament has been or will be committed and that information concerning the offence will be obtained through the use of the technique, procedure or device or the doing of the thing;

(b) the judge is satisfied that it is in the best interests of the administration of justice to issue the warrant; and

(c) there is no other provision in this or any other Act of Parliament that would provide for a warrant, authorization or order permitting the technique, procedure or device to be used or the thing to be done.

The appellant's challenge of the general warrant (rather than a more particular search warrant) almost went nowhere, but this decision grants him (and others like him) the standing to challenge the warrant in the first place. As the court notes, handing a computer over to a technician doesn't deprive the device's owner of an expectation of privacy.

In our view, the appellant had standing to argue a violation of his section 8 Charter right to be free from unreasonable search. The Crown concedes that the appellant maintained a reasonable expectation of privacy in the data stored on the computer even after delivery of his computer to the repair shop. Privacy is not an all-or-nothing concept. Allowing a technician to have physical access to the computer for the purpose of carrying out repairs does not amount to a waiver of the appellant’s strong expectation of privacy vis-à-vis third parties such as the police. While the appellant’s expectation of privacy was diminished to the extent that he could reasonably expect the repair technician to examine files on the computer in the course of the repairs, this operational reality does not deprive the appellant of standing to bring a claim under section 8 of the Charter.

Standing helps, but ultimately didn't help the appellant here. The court decides the failure to obtain the proper warrant is indeed a violation, but one not severe enough to trigger suppression of the evidence.

The failure to obtain an ordinary search warrant resulted in, at worst, a technical breach of the appellant’s section 8 Charter rights. There was prior judicial authorization for the search even though it was obtained pursuant to the wrong section of the Criminal Code. A general warrant requires reasonable and probable grounds to believe an offence has been committed, and reasonable and probable grounds to believe the search will reveal evidence of an offence – the same standard a judge would have applied with a traditional search warrant under section 487 of the Code.

The court goes on to note the failure to follow proper procedures when obtaining the warrant (ultimately the wrong sort of warrant) was negligent. It was anything but a "trivial" breach of protocol. Even if the officer's inexperience resulted in erroneous actions, the violation is severe enough for the court to take note of. But this negligence isn't enough to overcome the inevitable outcome of the search, in the court's opinion.

In this case, however, the causal link between the forensic search of the computer’s files and the violation of section 489.1 is very weak. Again, there is no reason to believe that the search of the computer’s files would have unfolded any differently if the officer who seized his computer had complied with section 489.1. On this record, any justice would have authorized the initial police detention of the computer, giving the police three months in which to seek a search warrant. There was no copying of the computer’s hard drive prior to the police obtaining a general warrant, which occurred within that three-month period. While the search of the computer’s files undoubtedly had a very significant impact on the appellant’s privacy interests, the police had sought and obtained judicial authorization prior to conducting the initial search, i.e., the forensic imaging. Although the effects of the breach were not trivial, we would not describe the impact on the appellant’s Charter-protected interest, as being particularly serious…

So, while this didn't end up giving the defendant the suppression he was seeking, it did at least affirm an expectation of privacy in devices being handled and repaired by third parties. Better, the opinion contains the government's concession that this privacy expectation exists. Hopefully, this will help deter violations -- erroneous or not -- in the future.

from the good-deals-on-cool-stuff dept

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from the do-it dept

So I'm a bit late to this, as Stephen Fry released a podcast "documentary" entitle Great Leap Years a few months back. I've just started listening to it recently, and it hits on so many of the points and ideas that I've tried to address here on Techdirt over the course of the past 20 years, but does so much more brilliantly than anything I've done in those ~70,000 posts. That is, in short, if you like what we write about here concerning the nature of innovation and technology, I highly recommend the podcast, after having just listened to the first two episodes.

And just to give you a sense of this, I'm going to quote a bit from near the end of the 2nd podcast. This isn't revealing any spoilers, and the storytelling is so wonderful that you really ought to listen to the whole thing. But this so perfectly encapsulates many of my thoughts about why people freaking out about "bad stuff" happening on Facebook, Twitter, YouTube and more are in the midst of a a moral panic not unlike those we've seen before. None of this is to say that we should ignore the "bad stuff" that is happening, or try to minimize it. But it does suggest that we take a broader perspective and recognize that, maybe, this is the way humans are, and it's not "this new technology" that's to blame.

The episode itself is about the invention of the printing press by Johannes Gutenberg (which also wonderfully works in some details about Gutenberg's real name that I had not known). And after going through the details of Gutenberg and his invention, discusses how the Catholic Church was initially overjoyed at the invention, noting that it could print and sell indulgences faster (which is an important call back to the 1st episode...). There's a brief discussion of how the Church suddenly realizes its "mistake" and tries to fight back, and then this:

All kinds of bad people saw the opportunity to harness the power of the printed word for their own ends. Ends that could result in burnings, massacres, and wars. The speed of the transmission of information accelerated everything.

You might say that the medieval world had been like one of those sluggish hormonally slowed down catatonic patients in Olver Sachs' book, Awakenings, later made into a film with Robert DeNiro and Robin Williams. Encephalitis lethargica was their affliction. Statue-like, motionless, with low body temperature, slow heart rate, zombie-like lethargy and stillness, they lived almost dormant lives. Sachs saw one such patient with just this disease, who was otherwise perfectly healthy, save for a small tumor in his tummy. Sachs injected his magical L-DOPA serum, and the man swiftly woke from his torpor, totally restored. Smiling, walking, remembering. Fully awake and alive. Everything back to speed... including his tumor. He was dead within two months. Killed by the stomach cancer which had awoken from its dormancy with the rest of him.

You might regard Europe as having been in just such a torpid state. The arrival of printing was like an injection of life-giving serum into Europe. It awoke and energized the world. But aggravated all kinds of cancers of tribalism, sectarianism, and rivalry too. In a manner all too familiar to us in our day, a cultural, intellectual, ideological and doctrinal chasm opened up in Europe. Culture wars that foreshadowed our own broke out. The Muslim world banned printing of Arabic or of Islamic texts. For centuries, Jews were banned from the printing trade and Christian countries forbade the printing of Hebrew texts. Propaganda took off. Edicts and attacks on Protestantism flew from Catholic presses, and vice versa.

As the historian Nile Ferguson argues in his book The Square and the Tower: The invention of movable type printing and the unleashing of what is known as the Gutenberg Revolution, created social networks in which two sides countered each other with misinformation (fake news, as we would have it now), the vicious abuse, and (as in our time) all without supervision or a locus of recognizable authority. A free-for-all raging outside of what had previously been structured hierarchies. Because anyone could use the invention, all kinds of bad actors and malevolent hustlers did use it.

Technologies like printing, or any other information technologies that have followed in its wake, are essentially neutral, have no moral valency, no inner directive in and of themselves to act either for good or ill. Indulgences could be printed, and broadsides attacking the corruption of indulgences could be printed just as easily. Das Kapital or Mein Kampf. It's all the same to the type, the paper, and the platten. The Declaration of Independence or The Protocols of the Elders of Zion? The sonnets of Shakespeare or the thoughts of Chairman Mao? Collections of recipes for cake making or collections of recipes for bomb making.

All this is familiar to us, we who mourn the swift death of the Utopian ideals promised by the internet and social media. The letter types in their boxes could seem like the evil spirits that flew from Pandora's box and released strife, starvation, war, and wickedness into the world.

I've, perhaps, now gone too far the other way. After all, impulses and new ways of thinking and exchanging ideas that were benevolent flourished too. To depict the Gutenberg Revolution as causing a human disaster is as sentimental and over-simplified as seeing it as having ushered in a golden age of open thought and perfect freedoms. Or, as regarding early humans, moving from hunter gatherers to agriculturalists as catastrophic. Or, looking on social networks and media as wholly calamitous.

Part of what this series of podcasts is aiming to do is to come to terms with the inevitability of... let's call it "change." Progress may be regarded as too freighted a word. Change, transformation, mutation, cultural evolution. These are our weather systems. Our historical and future landscapes were and our shaped by these processes, just as our geographical landscapes are shaped by the action of water and weather. To believe that we should or could halt them, or to waste time mourning their existential alterations to our ways of living is, to put it crudely, to piss into the wind. The movable type revolution was necessary and never a genie that any sane person would want to be forced back into its bottle.

Yes, cancers may have woken up in Europe at the same time as a new life surged through its bloodstream. But surely better a quick hot life, however cut short, than a permanent frozen nothingness, a catatonic zombie nullity.

The key is not to bemoan or to overpraise change, but to attempt as best we may to know all we can about the transformative nature of our leaps of innovation and to understand them. For today, changes are coming that will dwarf the revolutions in information technology with which we are familiar. It has never been more important, in my view, to be armed with knowledge and understanding of our past in order to confront our future with anything like confidence.

There's more and you should listen to the whole thing -- but this is a succinct and brilliantly described viewpoint that I've long shared about technology and innovation. Going back all the way to the copyright debates that we had on this site from the earliest days, the key point that I kept raising over and over again is that fighting over the claims that infringement is somehow "bad" totally miss the point. It is happening. And if it is happening, bemoaning that it was undermining traditional business models (that had their own problems for culture, free speech and, importantly, for artists themselves) was a silly waste of time. Wouldn't we have been better served looking to understand what new things were being enabled, and how those might be used to encourage more creativity and innovation.

And, of course, now we're having similar fights and discussions (as Fry clearly notes) about social media and the internet. And I'm sure there will be others -- perhaps about artificial intelligence or 3d printing or blockchain or satellites and space travel. Many of those debates have already started. And, as new technologies and innovations come about there will be more to debate and to understand.

But if the default is to start from the position that anything bad created by these new technologies condemns the technologies themselves, we will lose out. Not necessarily on the technologies themselves -- as those seem to have a way of advancing -- but on the ability to harness those technologies in the most useful and most fruitful ways. If we fear the transformations or focus solely on what will most prevent the "bad" or bring back the world that used to be, we will undoubtedly lose out on many of the many good things that come along as well.

This is the key point that Fry so nicely puts forth in the two episodes I've listened to so far. Change is happening and it has both good and bad consequences. No one should deny that. Focusing solely on one side, rather than the other, doesn't change any of that, but can create a lot of wasted time and effort. Instead, understanding the nature of that change, looking for ways to encourage more of the good, while discouraging the bad, is a reasonable path forward, but that has to come through understanding what's happening and recognizing that it is an impossible and pointless task to seek to remove or prevent all of the bad.

So many of the technological fights we talk about today over copyright, patents, encryption, the future of work, surveillance, and more often seem to stem from legacy operations which had a handle on things in the past that they no longer have a handle on today. But rather than looking for reasonable paths forward that preserve the good new things, they focus on eradicating the bad -- which is not just an impossible and fruitless plan, but one that will create significantly more negative consequences (intended or not).

Fry's podcast is great in providing some more historical perspective on this, but has also helped me better frame the work that we've tried to do here on Techdirt over the past two decades, and which we'll hopefully continue for many more.

from the inevitability dept

The rise of cord cutting shows no sign of slowing down. As cable providers continue to raise prices yet refuse to seriously address their dismal customer service, nasty billing fraud problems and skyrocketing prices, more users than ever are flocking to a new variety of cheaper, more flexible streaming alternatives. Some cablecos have attempted to get out ahead of this trend by offering their own competing services (AT&T's DirecTV Now, Dish Network's Sling TV), but most traditional cable providers seem intent on just doubling down on the same bad ideas that started the cord cutting trend in the first place.

The result is an obvious one. A new report indicates that more than 5.4 million cable TV subscribers are expected to cut the cord this year, resulting in a $5.5 billion loss in revenue for traditional cable TV providers like AT&T, Comcast, Charter and Verizon. That hit comes in comparison to the 4.8 million traditional pay TV subscribers lost in 2017, and the 3.8 million lost in 2016. It's all thanks to this mysterious thing known as competition:

"As the process of finding alternative paths to content gets easier and easier, people are acting on the frustrations they have with traditional providers and leaving,” the study’s lead author and cg42 managing partner Stephen Beck told MarketWatch."

Remember of course, that this is a trend that cable and broadcaster execs spent years claiming either wasn't real, or didn't matter because things would auto-correct once Millennials started procreating. That incredible denial was in turn propped up by industry metric organizations like Nielsen, which were happy to tell industry executives precisely what they wanted to hear (that this was a trend that would be easily reversible without having to oh, actually do all that much). As the report notes, that head in the sand approach isn't really paying dividends:

"Accelerating the cord-cutting trend is a lack of brand loyalty borne out of frustration, said Beck. Survey respondents were asked to rank their top frustrations by pay-TV provider. Beck found customers were most frustrated with being unable to get what they considered competitive or “reasonable” rates, new customers getting better deals than existing ones and being “nickeled and dimed” with multiple fees and charges.

Based on the survey data and information from public filings, cg42 predicts Comcast will lose 7.2% of its 21.3 million subscribers in 2018, a potential financial loss of $1.6 billion for the company. The firm also predicts AT&T’s DirecTV will lose 4.8% of their 24 million customers and a potential $1.2 billion.

These days, most executives do tend to acknowledge the trend is real (it's pretty hard to ignore at this point), but they still aren't particularly keen on actually doing anything about it. They're stuck between a rock and a hard place: denying the trend is real and refusing to compete on price will simply accelerate defections. But buckling to demand, shoring up customer service, and offering less expensive, more flexible channel bundles will hurt revenues. That said, it still makes more sense to be ahead of a trend with a quality offering in the field, than playing catching up with streaming alternatives that have slowly built a solid brand following.

A big reason for this apathy among many industry giants is they know they have an ace in the hole: their monopoly over broadband. As TV revenues sag, providers are simply turning to price hikes, usage caps and overage fees (aka, even more arbitrary and unnecessary price hikes) in order to make cutting the cord and streaming as expensive as possible. And, thanks to napping regulators, the death of net neutrality, an apathetic, cash-compromised Congress, and a lack of real broadband competition in countless markets nationwide, not much is going to be done about it.

from the FOIA-ACHIEVEMENT-UNLOCKED dept

The Trump Administration can claim a historic first, even though it would probably rather not do so. As the result of multiple FOIA lawsuits -- whose arguments were strengthened by Trump's tweets and statements from the House Intelligence community -- the DOJ has released a stack of FISA warrant applications. This has never happened in the 30-year existence of the FISA court.

The 412-page document [PDF] (which is actually four warrant applications and their accompanying court orders) detail the FBI's surveillance of Carter Page, alleged agent of a foreign power. The affidavits detail Page's connections to Russia, as well as the FBI's reliance on contested Steele dossier to build its case.

There are a lot of redactions that obscure Page's ties to Russian government officials, intelligence officers, and business owners, but there's enough left out in the open to draw some inferences. What's most interesting about the warrant applications is how often they rebut assertions made by Devin Nunes and his supposedly-damning memo.

Nunes portrayed this investigation as an abuse of surveillance powers to spy on the Trump campaign. Unfortunately for this member of the Intelligence Oversight Committee, the documents make it clear surveillance of Page didn't begin until after he had left his position as an adviser to Trump.

That doesn't mean Trump is off the hook in terms of collusion. The documents also refer to other members of Trump's campaign team "perhaps" being involved with Russian officials and intelligence services during the campaign.

The affidavits also undercut Nunes' and Trump's claims the FBI misled the FISA court about the origins of the Steele Dossier. Both claimed the FBI did not disclose the fact this dossier had been funded by Trump's political opponents. Footnotes attached to the very first warrant request expressly state Steele ("Source #1") had been hired by to dig up dirt on Trump's Russian connections by an outside law firm.

Source #1, who now owns a foreign business/financial intelligence firm, was approached by an identified U.S. person, who indicated to Source #1 that a U.S.-base law firm had hired the identified U.S. person to conduct research regarding Candidate #1's ties to Russia… The identified U.S. person hired Source #1 to conduct this research… The FBI speculates that the identified U.S. person was likely looking for information that could be used to discredit Candidate #1's campaign.

Unfortunately, a majority of the truly interesting stuff is redacted. We don't have many details about Page's involvement with Russian powers or what other criminal acts the FBI suspected he was engaged in. There's no unredacted discussion of the surveillance tactics deployed or how many non-targets may have been swept up in the FBI's intercepts. What is left unredacted is only enough to see how many Russian officials Page had access to and how they used him (one instance is left unredacted) to influence Trump's Russia-directed statements during the election campaign.

Does this mean we'll see more FISA surveillance applications released in the future? It seems doubtful. There aren't any others that have received so much public discussion from high-ranking government officials -- the very thing that undercut the DOJ's attempt to Glomar its way out of producing documents. This investigation is different. It has direct ties to the current president -- another high-ranking official who couldn't stop talking about the FISA affidavits the DOJ kept refusing to acknowledge existed. It's good these have been made public and it may eventually lead to even more transparency from the nation's most-secretive court. But this has the feel of an anomaly -- the byproduct of a highly-anomalous presidency.